I have always been puzzled by the venerable phrase “thinking like a lawyer.” What does it mean and should we take it as a compliment or a put-down?
I think the idea is best captured by a metaphor trial lawyers sometimes use to describe the craft of a colleague they especially admire or an adversary they fear — he or she can “see out the front.” It means the ability to look over a complex legal situation and manage its resolution to your client’s advantage. Everyone knows that a competent lawyer must know all the facts and the laws relevant to his or her case. But those are just the preliminaries. The best lawyers have the ability to weave those facts and laws into a powerful narrative that in the end wins the day.
In the book Guile is Good, I illustrate this point by telling how trial lawyer Gerry Spence framed his final argument to the jury in a famous lawsuit brought against the Kerr-McGee Corporation by the estate of Karen Silkwood. Kerr-McGee was a huge corporation that made plutonium-radium fuel rods for nuclear reactors. Spence’s complaint claimed that Silkwood, an employee and union rep at a Kerr-McGee plant, had been contaminated by nuclear active material while working at the plant. She later was killed in a car crash on her way to an appointment with a reporter for the New York Times to discuss worker contamination. (You may have seen the award winning film Silkwood that tells her story.)
Spence’s final argument to the jury is a good example of a lawyer “seeing out the front.” Like a well-crafted play, it had four “acts.” First, Spence described in concrete detail the negligence of Kerr-McGee in its meager program of safety precautions; then he described the heroic young Silkwood’s attempts to to warn the trusting workers of their danger. In the penultimate “act” he showed how Kerr’-McGee had tried to blame Karen for her exposure to radioactive poisoning.
And then there was the finale where Spence’s urged the jury to use the power that law gives them to see that justice was done to the memory of this heroic young woman. The jury responded by awarding the Silkwood estate five hundred thousand dollars in compensatory damages and five million dollars in punitive damages.
Not only did Spence write the script, he produced and starred in the play. We have to understand that winning a big lawsuit is the product of a a thousand strategic decisions, some small, some large, but all essential to victory. Before he or she accepts the case, the lawyer must evaluate it to make sure it will produce a verdict that justifies the expense of going forward. He or she then must decide what evidence to introduce and what evidence to leave out. Also what improper objections to make to disrupt the defendant’s case and what proper ones to omit in order to persuade the jury that the lawyer is so confident they will do justice to his client that he or she has no time for petty legal bickering.
And the lawyer also needs the nerves of a card sharp and the acumen of an accountant to decide on what settlement figure he or she will finally accept, knowing full well a five million punitive damages verdict is never going to be upheld on appeal. But to me , perhaps the the most amazing talent of all is the self-confidence to choose an unorthodox approach to trying a case, knowing full well that you will be roundly criticized should it fail.
I think it parochial to think of that only lawyers “think” this way. Spence uses his talent in a legal context, but I think he is just one example of a larger group of people with the more general ability to make intelligent decisions under conditions of great uncertainty. Lyndon Johnson showed the same talent creating the War on Poverty ,as did Steve Jobs in the marketing of computers, Berry Gordy in the record business, and Harvey Weinstein in the film industry.
But that still leaves the intriguing question of whether it is “good” to “think like a lawyer”? In one sense, such thinking is clearly a form of human excellence, like running fast or singing beautifully. But things get more complicated when we put the question from a societal perspective. What’s good for the client may be bad for the society. Spence had the luck (or sense) to use his skills on what appears to have been the side of the angels. But not all brilliant lawyers are fighting for the Karen Silkwoods of the world against the Kerr-McGees. While many talented lawyers today are fighting to combat the causes of climate change, I am sure that many more are using their skills to defend the corporations that are helping to cause it.
And then there’s the question of whether this brilliance makes the lawyer a better and/or happier person. Here we must face up to the sad fact that great ability often soon joins itself to great hubris, what one might call the “master of the universe” syndrome. A great man (usually it is a man) persuades himself that conventional ethical limits no longer apply to him. After all, it was the same decision-making prowess that enabled Harvey Weinstein to bring a beautiful movie like The Crying Game to the screen that also permitted him to conceal his terrorizing of young actresses for decades. And let us not forget Judge Kozinski.
Here as elsewhere we can learn a lot from fiction. Francis Ford Coppola’s The Godfather trilogy shows us early on that Michael Corleone is the brightest of the three brothers, but then we witness how in the end his brilliance at outsmarting the world only earns him loneliness and bitterness.
So if you ask me whether it’s “good” to think like a lawyer, I have to distinguish between different meanings of the term “good.” If we think of intellectual ability as an abstract quality (like a sharp knife) it is clearly “good.” But once we consider the purposes we use that intellectual knife to accomplish or how its use affects our own sense of well-being, I am afraid that simple answers elude us.
If you would like to know more about Gerry Spence’s performance in the Silkwood trial and tales of other lawyer creativity, here is a link to my book Guile is Good.